In April I job about the eleventh circuit emblem Winn-Dixie decision — finding that the websites themselves are not subject to the Americans with Disabilities Act (“ADA”). The move deepened the Circuit division on whether stand-alone websites, not connected to physical stores, are subject to ADA. Most of the District Courts of the Second Circuit have come to the opposite conclusion to that of the Eleventh Circuit, finding that the ADA Is apply to stand-alone websites. However, a recent ruling from the Eastern District of New York suggests a possible radical change.
In Winegard v. Newsday, LLC, a deaf complainant alleged that Newsday violated the ADA by not including closed captioning on videos posted on its website. Newsday raised two main defenses: (1) the plaintiff lacked standing because the videos in issue were also available on YouTube with captions; and (2) Newsday’s stand-alone website – with no physical retail operation accessible to the public – is not subject to ADA. Although the court rejected Newsday’s standing defense, it agreed with Newsday that stand-alone websites – not tied to a physical business – are not “public hosting places” subject to the ADA.
Some key points to remember:
- The ruling is not binding on Second Circuit courts, so it remains to be seen whether New York federal courts will become a less attractive venue for website accessibility lawsuits. Either way, plaintiffs can still choose to file a lawsuit in state court or other circuit, so it is unlikely to limit the total number of lawsuits filed for website accessibility. .
- Accessibility lawsuits have largely focused on barriers to accessibility for people who are blind or visually impaired. However, barriers to website accessibility also affect people with varying degrees of hearing, cognitive, physical and speech disabilities.
- In Vineyard, the court did not accept the argument that the plaintiff was not injured because an accessible version of the video was available elsewhere (for example, on Youtube). Notably, however, the court did not consider whether embedding a YouTube video with the captioning feature enabled (rather than posting the video on the site itself) would violate the ADA.
“The issue decided here is of course one of tremendous importance to the deaf and hard of hearing community, as well as to almost any business that would develop or maintain a website. Ultimately, this is an issue for Congress to resolve. , and Congress did so in 1990 when it limited the application of the ADA to the operation of physical premises. “2021 WL 3617522, at * 9.